IN RE: the Application of Gerald GARSON

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Supreme Court, Albany County, New York.

IN RE: the Application of Gerald GARSON, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent,

    Decided: August 08, 2008

Franzblau Dratch, P.C. (Stephen N. Dratch, Esq., of Counsel), New York, for petitioner. Andrew M. Cuomo, Attorney General, State of New York, (Robert M. Blum, Assistant Attorney General of Counsel), Albany, for respondent.

The petitioner was convicted, after trial in Kings County Supreme Court, of one count of receiving a bribe in the third degree and two counts of receiving a reward for official misconduct in the second degree (see Penal Law § 200.10, 200.25).   The charges arose out of the performance of petitioner's duties as a New York State Supreme Court Justice.   On June 28, 2007 the petitioner was sentenced to consecutive terms of imprisonment of one to four years on the charge of receiving a bribe, and one to three years on each of the charges of receiving an award for official misconduct.   His sentence totals, in the aggregate, three to ten years.   The petitioner is seventy-six years of age.   Soon after his incarceration the petitioner, in July or early August 2007, applied to participate in the temporary release program.   The application was denied in a decision dated August 8, 2007.   The decision of the central office reviewer recites, in part, as follows:

“Your application for temporary release work release has been denied by the temporary release committee for the following reason(s):  I/O Nature;  NDS Therapy.

Explanation:  Instant offense included Garson, while employed as Kings County Supreme Court Judge, accepting bribes with understanding his decisions as a public servant would be influenced.   Many innocent lives were affected by his actions.

Not considered appropriate for work release at this time.

You may not re-apply for work release until 08/2009.”

The petitioner thereafter filed an administrative appeal.   In a decision dated January 10, 2008 the Temporary Release Reviewer upheld the decision of the Temporary Release Committee.   The appeals decision recites as follows:

“After reviewing all factors in this case, both positive and negative, the decision has been made to affirm the TRC decision in this case.

Reasons:  I/O Nature Disciplinary

Comments:  The present offense involved you employed in the capacity of a county supreme court justice, accepting bribes with the understanding your decision as a public servant would be influenced.   You were convicted of brib rec. 3rd and Rec. Rew., Off Misconduct 2. Noted is your recent Tier II conviction.   Your poor custodial adjustment coupled with the serious impact the instant offense has on the community renders you an unsuitable candidate for work release.”

The petitioner has now commenced a CPLR Article 78 proceeding to review the determination to deny his application for temporary release.   To briefly summarize, the petitioner maintains that he is an ideal candidate for temporary release.   He asserts that the determination is unsupported in the record;  that the determination is based upon erroneous information with regard to the nature of the offenses for which the petitioner was convicted;  and that the application should be granted due to petitioner's medical infirmities.

Among the arguments advanced by the petitioner, he asserts that the determination failed to adhere to the requirements of Corrections Law § 855 and Title 7 Part 1900 of the rules and regulations of the Department of Correctional Services (see 7 NYCRR 1900.4[l ][4] ).   A number of factors are cited in support of petitioner's contention that the determination is irrational.   Among them are petitioner's plans for employment if the application is granted 1 ;  petitioner's residency plans (the petitioner would reside with his wife in New York City);  the petitioner's medical needs, which in his view, are best met outside a prison facility;  and petitioner's strong family and community support.   The petitioner strenuously objects to the Temporary Release Committee's comment that “while employed as Kings County Supreme Court Judge, [the petitioner] accept[ed] bribes with understanding his decisions as a public servant would be influenced”.   He maintains that his crimes were victimless, and blames “widespread systemic media reports” for the public's (and the Temporary Release Committee's) alleged “misconception” with regard to the nature of his crimes 2 .  With regard to petitioner's medical condition, the petitioner indicates that he suffers from atrial fibulation, recurring urolthelian cancer, hypertension, aortic valve disease, bullous pemphigoid, cataracts, glaucoma, prostatism, gastoesophageal reflux disease, osteoarthritis and alcohol dependent syndrome 3 .  Notwithstanding all of the foregoing, the petitioner takes the position that his serious medical infirmities would not prevent him from participating in the work release program.

 Under Corrections Law Section 855(9), participation in a temporary release program is a privilege, not a right (see Matter of Vaughan v. Goord, 26 A.D.3d 553, 553-554, 809 N.Y.S.2d 606 [3rd Dept., 2006], lv. denied 6 N.Y.3d 886, 817 N.Y.S.2d 211, 850 N.E.2d 26 [2006];  Matter of Crispino v. Goord, 31 A.D.3d 1022, 818 N.Y.S.2d 357 [3rd Dept., 2006];  Walker v. Le Fevre, 193 A.D.2d 982, 598 N.Y.S.2d 345, [3rd Dept., 1993];  Matter of Szucs v. Recore, 209 A.D.2d 803, 618 N.Y.S.2d 473 [3rd Dept., 1994] ).  “[The scope of judicial review] of a determination to deny an application to participate in such a program is limited to consideration of whether the determination “violated any positive statutory requirement or denied a constitutional right of the inmate and whether [it] is affected by irrationality bordering on impropriety” ' ” (Matter of Vaughan v. Goord, supra, at 553-554, 809 N.Y.S.2d 606, quoting Matter of Abascal v. Maczek, 19 A.D.3d 913, 914, 796 N.Y.S.2d 757 [3rd Dept., 2005], lv. denied 5 N.Y.3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133 [2005], quoting Matter of Gonzalez v. Wilson, 106 A.D.2d 386, 386-387, 482 N.Y.S.2d 302 [2nd Dept., 1984] ).   Denial of a temporary release application may be based upon the seriousness of the crime for which the petitioner is incarcerated (see Matter of Peck v. Maczek, 38 A.D.3d 948, 830 N.Y.S.2d 846 [3rd Dept., 2007];  Matter of Crispino v. Goord, 30 A.D.3d 874, 817 N.Y.S.2d 711 [3rd Dept., 2006] ).

 Under the rules of the Department of Correctional Services, “[t]he Committee shall also take into account any factors, besides the items in the point system, which, in their best judgment, they find significant.”  (7 NYCRR 1900.4[l ][2], emphasis supplied;  see also Wiggins v. Joy, 46 A.D.3d 1035, 1036, 847 N.Y.S.2d 278 [3d Dept., 2007] ).   The Committee is specifically directed to consider the nature of the crime for which the inmate is incarcerated (see 7 NYCRR 1900.4[l ][3] ).   Thus, irrespective of the fact that petitioner's crimes were nonviolent, the Temporary Release Committee could properly take into account the full nature and consequence of his criminal acts from the stand point that they were committed by an elected judicial official uniquely entrusted with the responsibility to impartially uphold and follow the law, not violate it.

The Court is mindful of the provisions of § 1900.4(l )(4) of the Rules of the Department of Correctional Services which recites as follows:

“Standard for referral.   Inmates should be denied temporary release if their presence in the community or in minimum security institutions would pose an unwarranted threat to their own or public safety, if public reaction is such that the inmate's successful participation in the program would be made difficult and public acceptance of the temporary release program would be jeopardized, or if there is substantial evidence to indicate the inmate cannot successfully complete his requested temporary release program.   Should the case warrant, the inmate may be told not to reapply for the program requested.”   (7 NYCRR 1900.4[l ][4] )

 The Court finds that the determination to deny petitioner's application for temporary release did not violate any positive statutory requirement or deny him a constitutional right.   Nor was it affected by irrationality bordering on impropriety.   The factors considered by the Temporary Release Committee were proper, and adequate to support the determination.   They also comport with the standard of referral set forth in § 1900.4(l )(4) of the Rules of the Department of Correctional Services (supra ).   In addition, the direction that the petitioner not re-apply for temporary release until August of 2009 was within the sound discretion of the Temporary Release Committee (see e.g. Matter of Di Gioia v. Turner, 215 A.D.2d 815, 626 N.Y.S.2d 572 [3rd Dept., 1995] ).

Petitioner has not demonstrated that the determination to deny his application to participate in the temporary release program was irrational, in violation of lawful procedure, affected by an error of law or arbitrary and capricious.

The Court has reviewed and considered petitioner's remaining arguments and finds them to be without merit. For all of the foregoing reasons, the Court concludes that the petition must be dismissed.

Accordingly, it is

ORDERED and ADJUDGED, that the petition be and hereby is dismissed.

This shall constitute the decision, order and judgment of the Court.   All papers are returned to the attorney for the respondent who is directed to enter this Decision/Order/Judgment without notice and to serve petitioner with a copy of this Decision/Order with notice of entry.

FOOTNOTES

1.   Other than mention of an unspecified offer of employment, it is unclear, from a review of the petition and exhibits, with regard to what petitioner's specific plans for employment are.

2.   Without unduly belaboring the point, the Court finds petitioner's argument that his crimes were victimless to be problematic.   The petitioner appears to concede that one of the charges of the indictment involved an allegation that the petitioner gave ex parte legal advice to his accomplice, one Paul Siminovsky, in a pending case, for which Mr. Siminovsky, in turn, rewarded the petitioner with a box of cigars.   On its face, this would suggest that the petitioner conferred an unfair advantage upon Mr. Siminovsky and his client, to the distinct disadvantage of the other party (or parties), who did not receive, or even know of, the preferential treatment.

3.   While there is a specific category of temporary release for inmates seeking medical treatment not otherwise available at the correctional facility (see 7 NYCRR 1900.3[3] ), there is no indication that the petitioner applied for this form of temporary release.

GEORGE B. CERESIA, J.

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